Saturday, April 19, 2008

The Politics Of Compromise

Any reform of an institution or an institutional nature will require political will. As we have learnt, the Barisan Nasional federal government is impervious to public opinion. Were it otherwise, we would not have heard the kind of rhetoric we did these past few years and that we continue to hear. Like all bullies, the Barisan responds to aggression and power. Until March 8th, when Malaysians coalesced into the phalanx that drove the Barisan out of five states and denied it the traditional two-thirds majority it had become accustomed to, there was no power that could match that of the Barisan. Safe in its control of key institutions and agencies, it had sat back and thumbed its nose at everyone else.

The slap it received on March 8th made the Barisan reel. But even as it took one, maybe two, steps back, it quickly steadied itself and clung to whatever it could, notably government. And despite seeming efforts to bridge the gap between it and Malaysians through the trumpeting of the need for reforms, the Barisan has thus far governed pretty much as it had prior to March 8th. We have in the short time since the elections heard about threats to racial harmony, seen the race and religious card played, heard the usual excuses over non-performance and, as expected, heard of how the opposition is the cause of all ills in the nation. Business, as such, is pretty much as usual, perhaps more so for the fact that the internal power struggle in UMNO is eclipsing all else on the list of priorities. Governance, it would seem, has once again fallen second to politics.

In this climate, it is apparent that Malaysians can only reasonably expect to see reforms where these reforms intersect with the political agenda of key players within UMNO. For all purposes and intents, more so than before in light of their dismal performance at the polls, the MCA and the MIC are largely irrelevant.

This setting makes me wonder how to perceive these wonderful promises of judicial reform. I know Zaid Ibrahim and I think he is doing a good job at trying to push for reforms. His efforts strike me as being sincere and aimed more at nation building than politics. If he were the only factor in the mix, I would be heartened and would view the situation optimistically.

However, Zaid is not the only factor nor he is the only player. Neither is the Prime Minister, assuming that he is solidly behind the push for reform. There are those on the cabinet who, in many ways, represent the old guard and for that reason alone may choose to oppose any measure involving acknowledgments of wrongdoing, tacit or otherwise. I note the Deputy Prime Minister’s emphatic rejection of the suggestion that the gesture made by the Government to those judges who were victimized in 1988, was not, repeat, not an apology. This refutation is manifestly inconsistent with Prime Minister’s declaration of a need to make amends. This and the presence on the cabinet of other senior UMNO members who may be nervous about crossing Tun Mahathir, who in these politically treacherous times is now openly acknowledged as being the principal cause of the downfall of the Judiciary, hints worryingly at the possibility that the reform proposals may not gain traction.

The ex-gratia payment and the speech delivered by the Prime Minister fell short of the full vindication that the affected judges, so well versed in the parceling of fault, are deserving off. The payment and speech go someway to beginning a necessary process of truth and reconciliation not only the victims of 1988 but for the Judiciary and the nation. We must credit Zaid and the Prime Minister for that.

Having said that, it must be recognized however that no matter how we characterize the gesture, it in itself does not go far in reforming the Judiciary. Zaid had declared that there were three key aspects to the reform package he was offering Malaysia; the apology, the establishment of a judicial appointments commission and reinstating Article 121(1) of the Federal Constitution to ensure the separation of powers. Of the three, as thing stand, only the first has to an extent become a reality.

The Prime Minister’s declaration that the government proposes the establishment of a judicial appointments commission does not quite hit the mark where the second is concerned, in part because it is for the government to take steps and not to propose. His explanation that this will involve some time as the process has to be worked out is not reassuring in light of the split in ranks within the cabinet. The Prime Minister had in 2005 similarly reassured Malaysians that the IPCMC would be established. We have yet to see it, largely due to resistance from within. The establishment of the National Human Rights Commission (SUHAKAM) took some seven years. If that is what is meant when the Prime Minister says that the process will take time, I am not inspired. I do not know whether Malaysia can take another seven years of the Judiciary in its current state.

The avoidance of any discussion of Article 121(1) in the speech is similarly worrying. The reinstatement of the article as it was prior to 1988 is a crucial step in re-entrenching the separation of powers and re-establishing the judiciary as a bulwark against totalitarian arbitrariness. The Barisan government has time and time again shown us why Malaysians cannot afford to lose the right to seek judicial review. We are largely where we are because the courts felt themselves unable to intervene or, if permitted, were unwilling. The absence of any reference to this key aspect of the discussion further undermines my belief that the Government will actually take concrete steps forward.

Seen from this perspective, it is glaringly evident that the nation is currently caught up in a huge public relations exercise that the Barisan has hinged on the promise of judicial reforms. The public relation campaign does not necessarily of itself lead to the implementation of reforms.

It is for this reason that civil society must keep on pressuring the Government to act and to act decisively. The Pakatan Rakyat should consider tabling a private members bill for the establishment of an adequately empowered judicial appointments commission. All possible avenues to create awareness and force accountability must be explored. The battle has not been won, it has just begun.

Which is why I find the overwhelmingly supportive reaction of the Malaysian Bar somewhat surprising. The Bar has always been at the vanguard of rule of law issues. It has been steadfast in its condemnation of the events of 1988 and the subsequent decline in the quality and integrity of the Judiciary. Nothing less than a full apology and a reinstatement of all benefits of the judges who were wrongly attacked should have warranted the standing ovation given to the Prime Minister. But there was a standing ovation, and that at a dinner hosted by the Bar but paid for by the Government, something I never thought I would see in my lifetime as a lawyer.

The Bar needs to be wary of accommodating, or being perceived as accommodating, the politics of the Executive. It is however veering dangerously close to doing just that and compromising itself in a manner that will rob it of its credibility.

When, and if, the proposal for a judicial appointments commission comes to fruition, the Bar will be the primary voice of civil society to ensure that the commission is established as it should be. In all likelihood, the appointments mechanism will not satisfy the criteria of an independent appointments commission. At that point in time, the Bar must ensure that it is in a position to live up to its responsibilities. Positions it takes now will limit its freedom to react appropriately. Regrettably, the extent of support shown to the Government, from the hosting of the dinner to the adulatory speeches, may have already had their impact.

Commending the Prime Minister for the step taken was the proper thing to do, but to offer, as the media reports suggest, congratulations for the loosening up of controls over the freedom of expression, is to ignore the very real and very painful suppression of the numerous demonstrations of 2007 by force. The shots fired in Pantai Batu Burok still ring out, as do the cries of peaceful marchers and demonstrators as they were tear gassed and attacked with water cannons. The Prime Minister was responsible for all that and more.

I appreciate that activism will require tactical concessions. I also understand that it is better to seize what gains one can when one can rather than not making any progress at all. However, gains should not be taken at the risk of principle. The rule of law cannot be built on compromise.

20 comments:

This blatant misuse of publicity is manipulative indeed. It is indeed masterful propaganda to resurrect or manage his new (or rather stillborn) reform image.

The Bar Council is a most useful stage to foster this political theatre. With such an audience of political actors and the very unique context, he’s constructed his own public sphere and staged this display to (re)assert his admin's control/dominance.

Sadly, the "overwhelmingly supportive reaction of the Malaysian Bar" would seem to convey 'public opinion' legitimising his lack of conviction or commitment to change.

najib comes to the fore to shield mahatir and earn back some brownie points from the latter? looks like BN is still stuck in oldie times and is so paralysed that it couldnt even take a baby step to move out from the dark ages. maybe, after mahatir's passing, would UMNO dare to make the move to change. by then, would it be too late?

Yes, it is worrying because the Bar Council has side-stepped so many rakyat issues of the past to accommodate the PM's PR gesture. It cannot be that the Bar Council Committee members are naive, so what gives?

true, the publicity hype or stunt did not fulfill the aspiration of the middle class, AAB is too weak after 8 march election to make any substantial reforms. He will go down in history as the weakest PM malaysia has ever had.

But then, for the last 4 years as PM given the tremendous support and promises, he did not, but slept all the way.

Your observations and remarks are spot on, Imtiaz. Six weeks after GE12, with BN still in control of the mass media, the police, and the legal apparatus, it's patently obvious that Umno is utterly stuck in its 19th century neo-feudal mindset and all we can expect from them is the same old same old. Deceit, hypocrisy, smugness, and sheer malice continue to inform their every action and reaction (I cite the stupidly heavy-handed actions of the police in respect of the April 14 Freedom Rally at Sultan Sulaiman Club, presumably instigatedby Syed Hamid Albar who seems to relish his new role as Head of the SS). In effect, despite the exhilarating Pakatan Rakyat gains, no significant changes will be possible until the BN no longer governs. The rot has set in too deep for any amount of medication to be effective. I recommend euthanasia.

Some people see the 'judicial reform' in the sense of its timing. While we cannot ignore that Zaid has been relatively consistent in his liberal attitudes, we are rightly concern by what MIS said. He is just one voice. Had this reform commenced some 4 years back, when AAB was given a gigantinourmous mandate, we may believe the sincerity of AAB, but after 0803, it strikes as being a short-term tactical ploy.

It is easy to set up commissions, committees and councils. But to change the mindset... whao..., that's tough! In fact, that's the sort of things which revolutionaries in thinking do, but can we find one in the stricken UMNO ship?

The announcements were a step forward but did not deserve a standing ovation by the Bar Council.

People may ask why is Bar Council not supporting the gesture when the Salleh Abas & Co themselves appear to be forgiving. Well the Bar Council must never forget that they defended the office of the Lord President and for that matter, the Judges. Never in their personal capacity. If nothing short of an apology is required, so be it. The Bar Council as the conscience of the nation's sense of justice must reject the ex-gratia payment.

The Judicial Commission announced does nothing more than taking away the power to reccommend judges to the PM from the Chief Justice. Surely the position that the PM still retains the sole right to reccomend judges, their promotion etc to the Agong cannot be acceptable to the Bar Council.

How could the Bar Council agree the to host the dinner when the announcements were aterred down versions of what they have been pushing for.

1. The bar council (or rather the clowns who are running it) has lost credibility by ignoring 'real world' issues that affect Malaysians on the street by colluding with a man who runs the country on the principle of side-stepping his walk while sweet-talking to the rakyat;2. Zaid Ibrahim also lost his credibility by picking the wrong priority at the wrong time. There are other more pressing matters that have direct impact on everyday lives of Malaysian, like reforming the police force, making the ACA more independent with more teeth... etc. Now he's showing himself as the baluchi of AAB's SIL, picking up issues as per prescribed agenda.3. Tun Salleh Abas would be better off keeping a low profile since his SIL's complication/involvement in Scomi could be contrued as as 'playing to the tune' of desperate AAB, SIL&Co. You don't want to put question marks on people's mind at this uncertain times, do you? This goes way beyond your need for 'moral redemption', I'm sure?

Truth as they say, may not be palatable to many, but especilly to those who never thought they could err...

i lived in Australia for the past 7 years and really felt the positive impact of the apology to the stolen generation,and I can understand why an apology in this case is both important to all involved,and the nation

Someone argued back with "there are reasons that an apology is not possible that only lawyers would understand" but could not explain to me what he meant by that... (because apparently as I am not a lawyer I can not understand)

Any way can anyone else help me understand? From a lawyers perspective!?

I do not see malaysians allowing the bn govt to delay substantially,the reforms already mentioned by the PM. Well aware of the fact that there are old dogs in the cabinet and among the UMNO leaders who will be obstacles to the reforms because of vested interest but Malaysians must come forward to insist on wholesale reform.

Malaysians should not allow a few old and crooked dogs to obstruct our progress as a nation.

Malaysians must make it a point to spell it out clearly that we do not want a government of crooks and tyrants.

Malaysians has seen how positive it is to advocate change and comes the next election, we should continue to vote for further and even more concrete changes.

I am not certain what was meant by the "only lawyers" will understand comment but here's my take on the situation.

An apology could be argued as being, in effect, an admission that a wrong was done to Tun Salleh and the other judges in 1988 for which the government is culpable. As legal entities, governments do not change even if the political parties, and their members, who make up government do. The denial that an apology was tendered is therefore a denial that the government did anything wrong in making the recommendation to the YDPA to establish the tribunal. Implicit in this is an assertion that the tribunal did what it did on its own and the Government was not involved in this.

It is, all things said and done, a question of liability and the Government's concern that it might be sued by those affected or in other ways held accountable.

Compromise is a common word in the Political world when Rules and Regulations or Fairness are at most Second to Power or Benefits Sharing! .

Compromise should only apply when what they are "bargaining" something belong to those who compromise. But in many case "Compromise" are used in the Politic, or, government offices to go over the obligations and duties of the Government or someone with the sacrifice of the Rights of the others. So in many case Politicians take the lead instead of officers responsible for the topic.An "art" of "Kow Dim" instead of legally or administratively the right moves!

Hills around Taman Melawati is a good example. http://www.savetamanmelawatihill.com/When Technically and environmentally, having residential project on the hill sides should be prohibited. But, "compromise" took place! Instead of MPAJ and State Town & Planning Department should face the Public, a Politician is there to arrange compromise!Same for Subang Ria Park!

How many Breach of Duty or Trust with physical, environmental and financial impacts and abuse of Rights of the residents and taxpayers?

The Legal walk ending up with a "Personal" compromise "to give him a Chance" is another. Did members know they were to compromise before the walk? Is the person authorized to compromise by any or most of the members?Giving Datuk-ship a reward of compromise?

How often Lawyers compromise when parties involved could have a straight case? And, Judges are promoting "Compromise"?

If Ethics are not there to measure, the sense of Right or Wrong will never be there! And Abuses over-flood!Judges "compromise" with lawyers to allow delaysor tricks to play to the other sides!

ARE these under Politics or Crime? or at least "Ethics" with feeling of Fairness to be applied?